Britain’s equality watchdog, the Equality and Human Rights Commission, has updated its guidance for publishing job advertisements providing greater clarity around “occupational requirements”.
The EHRC first published its guidance on discriminatory adverts in 2016 but has updated it today (16 July) to address a lack of clarity about the law, particularly where the protected characteristic is “sex”.
Discriminatory adverts are those which restrict jobs, goods, services or facilities to people with a protected characteristic covered by the Equality Act 2010. They are unlawful except in limited circumstances where the Equality Act specifically allows such a restriction.
The refreshed guidance provides greater clarity around occupational requirements, under Schedule 9 of the Equality Act, where an employer can require a job applicant or employee to have a particular protected characteristic if it is necessary for the role.
The EHRC says it is aware of evidence that some employers have incorrectly applied occupational requirement exceptions.
The updated guidance makes clear that where an occupational requirement relates to sex, the law says this means a person’s legal sex as recorded on their birth certificate or gender recognition certificate (GRC).
Baroness Kishwer Falkner, EHRC chairwoman, said: “We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in Schedule 9 of the Equality Act. So we have taken action to provide it.
“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them to comply with the law.
“Employers should also be aware that the EHRC will take action to uphold the Equality Act. Where we are made aware of potential misapplication of Schedule 9 provisions, we will continue to assess and take action to resolve these on a case-by-case basis.”
We welcome this long overdue guidance from the EHRC which sets out that self-ID is not the law. Women’s-rights campaigners have been complaining to the EHRC for years about ads for female-only jobs and services that say they will accept men who identify as women” – Maya Forstater, CEO at Sex Matters
The EHRC said its review of the previous guidance on discriminatory adverts concluded that some areas of the document relating to occupational requirement exemptions required updating to be legally correct.
Objectively justifiable
Where an occupational requirement applies, the EHRC guidance states that an employer must make sure that it is objectively justifiable. This means it must be a proportionate means of achieving a legitimate aim.
“An example of an objectively justifiable requirement could be a specification that a public changing room attendant is the same sex as the people using the facilities. The requirement is intended to achieve the legitimate aim of protecting the privacy and dignity of service users. It is likely to be proportionate as there is unlikely to be a less discriminatory way of doing so. It may therefore be lawful,” it says.
The protected characteristic of “sex” means a person’s legal sex as recorded on their birth certificate or GRC.
The guidance continues: “This means that a sex-based occupational requirement that an applicant is a woman – as is common within specialist support services for women, such as rape counselling – will include women who are recorded female at birth and also transgender women who have obtained a GRC.
“However, Schedule 9 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include those who have obtained a GRC. A ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under the Equality Act 2010.”
The guidance also states that an advert should clearly explain the basis and reasons for the restriction where an occupational requirement is stated. Another example of an occupational requirement included in the guidance is for a charity recruiting a community health advocate for the Sikh community where it is necessary for the person to be Sikh to communicate effectively with community members.
The updated EHRC guidance on discriminatory adverts applies to England, Wales and Scotland.
Reaction to updated guidance
Maya Forstater, chief executive at human-rights charity Sex Matters, said: “We welcome this long overdue guidance from the EHRC which sets out that self-ID is not the law. Women’s-rights campaigners have been complaining to the EHRC for years about ads for female-only jobs and services that say they will accept men who identify as women.
“The EHRC could be even clearer with its guidance. ‘Adverts’ include signs and symbols in everyday language. Employers can only restrict a service or a job to women with good reason, and it is never appropriate for men to try to access these services, regardless of how they dress, or whether they have a piece of paper claiming they’re women.”
Nicola Williams, spokeswoman for women’s rights campaign group Fair Play for Women, said: “We welcome this new guidance that makes clear men who self-identify as women are not female and should not be recruited as such. We have been reporting rogue employers who misuse the law by advertising for ‘self-identifying women’ to fill women-only roles. That means males doing jobs reserved for females. That is unfair on the women who apply, and the people who rely on a woman being in that role for reasons of privacy, dignity and safety.
“However this guidance also says men who change their legal status to female by obtaining a GRC can be recruited into a female role. This highlights the absurdity of a law that expects a woman to waive her need for privacy or safety simply because a man gets a certificate.
“The new Labour government wants to make it even easier for men to get these certificates. This is why [Keir] Starmer must heed calls to clarify that sex means biological sex in the Equality Act. Otherwise, when you next ask for a woman to perform your intimate exam you might get a man with a certificate doing it.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday